Introduction
In the dynamic world of digital marketing, moment marketing is emerging as a potent strategy for leveraging real-time events and trending issues to engage audiences across social media platforms. Its agility and virality have helped many brands successfully connect with the general public, particularly social media users, across the globe in unprecedented ways. As brands race to capitalize on such viral moments, the relevance of moment marketing in generating a high number of impressions on their social media posts and even physical hoardings has never been more pertinent.
However, this surge in moment marketing has also raised significant legal challenges pertaining to the violation of the personality rights of celebrities and sportspersons who are often the subject of advertisements. Brands often exploit trending occurrences for quick publicity by featuring public figures and personal stories without adequate consideration of the privacy and consent of the individuals concerned. This practice both risks crossing ethical boundaries and encroaches upon individuals’ rights to regulate their own image and personal narrative. With the increasing blurring of lines between engaging content and exploitation of personality rights, it has become crucial to identify when moment marketing crosses legally stipulated boundaries and inadvertently infringes upon the likeness of individuals, as these could result in severe legal consequences and dent the hard-earned reputation these brands built over years.
Image Rights and Public Figures
Sportspersons today value their personality and image rights, as these directly influence their public image, brand endorsements, and overall marketability. Any exploitation of these rights now forms a significant portion of many athletes’ income. In India, the legal framework protecting these rights includes provisions under various laws. The Indian Constitution provides a right to privacy, which encompasses personality rights. The Copyright Act, 1957, also safeguards against the unauthorized use of an individual’s image. Indian courts also have increasingly recognized personality rights through various rulings, reinforcing that the commercial use of a public figure’s image without consent can constitute an infringement. In DM Entertainment v. Baby Gift House[1], the Delhi High Court granted a permanent injunction to DM Entertainment to restrain the Defendants from selling toys and dolls that sang lines of the songs and compositions made by the proprietor of the Plaintiff, Daler Mehndi. The High Court noted that the Defendants violated the Plaintiff’s right of publicity. It also noted that such misrepresentation would constitute acts of false endorsement and passing off by a third party and would lead to the dilution and erosion of uniqueness and exclusivity associated with the Plaintiff’s right, among other things. Several landmark cases decided on these principles include Shivaji Rao Gaikwad v. M/s Varsha Productions[2] and Titan Industries v. M/s Ramkumar Jewellers[3], concerning the image rights of Rajinikanth and Amitabh Bachchan, respectively. As of today, multiple celebrities and public figures have opted to protect exclusive rights to their personalities. Bollywood actors Anil Kapoor[4] and Jackie Shroff[5] have filed civil suits to restrain entities from misusing their name, voice, or other elements of their persona for monetary gain without their consent.
The Olympic Congratulatory Campaigns
Recently, Manu Bhaker, an Indian shooter competing in the Paris Olympics 2024 made headlines by becoming the first Indian athlete to win two medals in a single edition of the Olympics. After clinching the bronze medal in the women’s 10m air pistol category, Bhaker doubled up on her success by winning another bronze medal in the 10m air pistol mixed event with Sarabjot Singh. As her remarkable feat in the sport catapulted her into stardom and made her one of the most sought-after Indian athletes, many brands began attempting to capitalize on her success by using her photos and posting congratulatory messages with the names of their brands prominently displayed on the messages. Brands seizing the opportunity to engage in moment marketing were warned that they shall be served with legal notices for encroaching upon her personality rights. The encroachment stems from the said brands not having played any role in Bhaker’s growth and progress. On the other hand, such marketing by unrelated brands misappropriates the justful right to publicity of those brands that acted as Manu’s sponsors. A similar frenzy occurred during the Tokyo Olympics in 2020, where brands that rushed in to congratulate ace shuttler P.V. Sindhu on her bronze medal win were served with legal notices for the unauthorized use of her image. It is common practice in the sports world to license one’s image rights to a professional management agency, which represents the sportspersons in case of commercial exploitation. Management agencies like Cornerstone Sport which manages Sindhu, and IOS Sports & Entertainment, which handles Manu Bhaker, ensure that the image rights of their athletes are not exploited if the brands are not sponsors.
Article 7 of the Olympic Charter defines Olympic Properties as including the flag, motto, anthem, Olympic identifications, the Olympic torch, and any musical, audiovisual, or creative work related to the Olympic Games. The rights to the Olympic Properties and the regulation of their use, including for commercial and advertisement purposes, belongs exclusively to the International Olympic Committee (IOC). Consequently, for Olympians like Sindhu and Bhaker, any images of the athletes also containing any of the aforementioned elements would constitute a violation of the trademark rights of the IOC and could result in infringement actions against the brand. Interestingly, many of these brands try to seize opportunities to associate themselves with athletes or celebrities achieving recent (and first-of-its-kind) stardom instead of far more famous personalities from the industry. The only logical reasoning behind this is brands’ awareness of the higher risk of being legally sued by well-known celebrities than celebrities and sportspersons receiving fame for the first time.
Conclusion
In the absence of sponsorship or other similar arrangements with the athlete concerned, brands should resist from engaging in moment marketing based on the athlete’s success. In such a scenario, it is apparent that the brand’s most crucial step should be to secure proper authorization from the player whose image they wish to use. However, it must seek legal assistance to guarantee organic brand marketing without attracting legal complications. Legal assistance would also ensure that brand owners not only understand the governance of different aspects of image rights but also the requisite steps they should take with multiple stakeholders for legal complicity. Legal guidance may involve not only reviewing advertisements and opinion on third-party infringement but also providing ideas on escalating brand valuation.
For further information, please contact:
Revanta Mathur, Partner, Cyril Amarchand Mangaldas
revanta.mathur@cyrilshroff.com
[1] CS(OS) 893/2002
[2] 2015 (62) PTC 351 (Madras)
[3] CS(OS) No.2662/2011
[4] Anil Kapoor v. Simply Life India & Ors. CS (COMM) 652/2023
[5] Jaikishan Kakubhai Saraf alias Jackie Shroff v. The Peppy Store & Ors. CS(COMM) 389/2024
